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Thursday, October 20, 2011

State Bar will investigate prosecutor misconduct in Michael Morton exoneration

Chuck Lindell at the Austin Statesman reports today that the State Bar is investigation prosecutor misconduct allegation stemming from the Michael Morton exoneration. The story opens:

The State Bar of Texas is investigating actions taken by trial prosecutors in the 1987 wrongful conviction of Michael Morton, an official said Wednesday.

The bar took the rare step of acknowledging an ongoing disciplinary investigation because of the attention Morton's case has received since mid-August, when his lawyers announced that DNA tests showed another man killed his wife, Christine, in their Williamson County home.

Morton was freed Oct. 4 after serving almost 25 years in prison, and the state's highest criminal court later proclaimed his innocence and tossed out his murder conviction and life sentence.

"We decided, because of the high-profile nature of the thing, that we were going to tell the public that we were looking into it," Maureen Ray, with the bar's office of chief disciplinary counsel, said Wednesday.

Also Wednesday, the former district attorney who prosecuted Morton, Ken Anderson, filed a motion to quash a subpoena forcing him to testify under oath about allegations that he improperly hid evidence favorable to Morton.

Morton's lawyers are set to depose Anderson, now a district judge in Georgetown, on Oct. 26. However, through his attorney Mark Dietz, Anderson said District Judge Sid Harle lacked the jurisdiction to issue the subpoena and that he was not provided 10-day notice as required by court procedures.

Who is surprised that Judge Anderson doesn't want to testify under oath about why exculpatory evidence wasn't turned over to the defense? I still doubt that the State Bar will discipline any prosecutor in the case, because, as Lindell reports at the end of the story, they almost never do:

The state bar rarely investigates prosecutors for cases of alleged misconduct, several lawyers involved in the grievance process said Wednesday. One problem is the lack of credible witnesses because complaints typically come from successfully prosecuted inmates.

It is also "very, very rare" for the bar to follow through with sanctions against prosecutors, said Chuck Herring, an Austin lawyer who specializes in lawyer discipline cases.

"In over 25 years doing this area of law practice, I have never represented a prosecutor," Herring said. "I can remember only a very few instances of reports of prosecutors being disciplined for any violation of the rules."

One such case came in 2005, when the bar sanctioned former Swisher County District Attorney Terry McEachern for hiding information about a paid informant's criminal past to prosecute 46 people in a 1999 Tulia drug sting. McEachern was placed on a two-year probation that allowed him to continue practicing law.

The McEachern case is the one always mentioned, but that's the only example I know of in the last decade where a Texas prosecutor was disciplined by the state bar for hiding so-called Brady material. To clarify, though, McEachern didn't hide a "paid informant's criminal past," it was actually the criminal history of an undercover gypsy cop named Tom Coleman that he failed to reveal to the defense. Still, plenty of other cases have arisen where exculpatory evidence was withheld, including in capital cases, and the state bar tends to ignore them all.

Maybe, like McEachern's case, things will be different this time because of intense media scrutiny. But I'd feel more confident that the profession was capable of governing itself if it didn't take national media attention to prod them into action when Brady violations occur in criminal cases.

9 comments:

Anonymous
said...

Bar investigations, and investigations of lawyer, prosecutor or police misconduct, should not be "ifferent" because of "intense media scrutiny." Those investigations should be based upon the facts and credible evidence---not what the media and liberal intelligentcia desires.

The problem with Brady violations, and "exculpatory" evidence in general, is that it's so inherently subjective. What may seem to be Brady with the benefit of hindsight, isn't always so obvious at the time. And then there's always the question of what the prosecutor knew and when did he know it. Just because information is in the possession of law enforcement doesn't mean it was relayed to the DA.

I don't know enough about the Morton case to know whether there was a violation or not. But these are all reasons why it's frequently hard for the bar to find misconduct based upon a Brady violation claim.

Those are certainly the excuses most often proffered, 9:06, but the truth is the state bar simply doesn't pursue cases against prosecutors except in the most extreme, media-driven incidents like this one where the reporters have done all the work for the investigators and made it public so they can't weasel out of their responsibility.

9:06 - Prosecutors had in their hands a statement from an eyewitness to the crime who knew Morton (his own son) who said that Morton was not at home at the time of the murder. That statement was not provided to Morton's attorneys until 22 years after the trial and in fact appears to have been hidden from the trial judge. One of the prosecutors joked about it when talking to the jury after the trial. If that is not exculpatory evidence and hiding it wasn't a Brady violation, then there's no such thing as a Brady violation.

And that's not to mention the evidence of usage of the victim's credit card and the cashing of a check made out to the victim.

2. 9:06, you said "Just because information is in the possession of law enforcement doesn't mean it was relayed to the DA." Is law enforcement allowed to withhold Bradey material? Also it would be up to the court to decide if the withheld Brady material was deemed a violation only from the benefit of hindsight or if it was from the pre-meditation of foresight.

3. A prior Grits post was titled "What can the Texas Legislature do to reduce prosecutorial misconduct?" How about making it a crime to break the law?? Oh, immunity, I forgot.

"Investigating," is a long ways from doing anything. I bet the focus of the investigation will be how to justify taking no action.

There was clear misconduct, (Brady violations, hiding witnesses, knowingly allowing a witness to lie), in the Mineola Swingers Club case in Smith County. I believe that a complaint was filed agains the assistant DA. Another DA filed an amicus brief in the appeal alleging misconduct on the part of Smith County proseuctors. All complaints are supposedly "investigated," but no action was taken. I'm sure that will be the case here. Furthermore, in the Mineola case, the court of appeals noted that the judge made up rules of evidence to help the proseuction win. I know that complaints were filed with the Judicial Conduct Commission. I'm sure this was also "investigated." Yet, in spite of an appellate court order documenting extensive misconduct, nothing was done. So, don't hold your breath in this case.

Funny moment at the CCA yesterday -during argument about a case that had nothing to do with Morton's (in fact the subject matter was the practice of trials of TDCJ inmates accused of further offenses being held not only in a prison but in a prison chapel!) Anyway, Judge Womack (former Williamson County prosecutor) was asking a question about the practice in different counties, and mentioned Williamson County but then commented something along the lines of " ... I'm from Williamson County but I had nothing to do with the Michael Morton case!" Looks as though everyone is distancing themselves from that prosecution as much as they can.

Another random point ... why can't all the CCA judges turn up for oral argument? Price was absent, and Judge Meyers drifted in late - put yourself in the position of the family member of a capital appellant who watches the judges in whose hands their loved one's fate rests behaving that casually. Leaves something of a bad impression ...

I reference this sentence: "One problem is the lack of credible witnesses because complaints typically come from successfully prosecuted inmates."

These inmates are human beings and someone's loved ones. They are successfully prosecuted because they are scared, intimidated and forced into plea agreements or they will face a harsher sentence if they don't take the plea. They are convicted by the prosecutor's misconduct and disregard for the justice system.

I would personally like Bradley and his cronies to be sent to TDCJ and subjected to what our loved ones are forced go endure. How about thrown in the hole because the guards are having a bad day, forced to strip and parade naked amongst the other inmates, accused of dirty urine test even though they don't do drugs, or harassed and assaulted and given "bogus cases" by the very correctional officers that are there to protect them.

As one Correctional Officer told the inmates "pick out any case out of the book and I can made it stick."

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